UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-40898
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UNITED STATES OF AMERICA,
Defendant-Appellee,
versus
GARY ALLEN PATTERSON,
Plaintiff-Appellant.
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Appeal from the United States District Court for the
Eastern District of Texas
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May 9, 2000
Before WIENER, BENAVIDES, and PARKER, Circuit Judges.
PER CURIAM:
Plaintiff-appellant Gary Allen Patterson (Patterson) appeals
the district court’s dismissal of his motion to vacate his sentence
pursuant to 28 U.S.C. § 2255 as time-barred. In this case, we
decide whether the limitations provision in § 2255 is subject to
equitable tolling. As have our sister circuits who have addressed
this issue, we come to the unremarkable conclusion that the
limitations provision in § 2255 may be equitably tolled in rare and
exceptional circumstances. Finding that the circumstances of this
case are such that equitable tolling is warranted, we vacate the
dismissal and remand for further proceedings.
I. PROCEDURAL HISTORY
In 1993, Patterson was convicted by a jury of conspiracy to
possess with intent to distribute cocaine base and sentenced to
life imprisonment. This Court upheld his conviction and sentence
in an unpublished opinion in 1994.
On December 12, 1996, Patterson filed a § 2255 motion raising
several issues. On April 14, 1997, subsequent to the government
filing its response, Patterson moved to voluntarily withdraw his
motion without prejudice “so that he could find an experience[d]
writ-writer” and file his § 2255 motion on “a later date.” On
April 30, 1997, the district court, over the government’s
objections, granted the motion and dismissed the § 2255 motion
without prejudice pursuant to Rule 41(a) of the Federal Rules of
Civil Procedure. In its order of dismissal, the district court
stated: “[T]he court is of the opinion that it would be in the
interests of justice to permit movant to voluntarily dismiss his
motion to vacate.”
Nearly one year later, on April 27, 1998,1 Patterson filed a
motion for an extension of time to file a § 2255 motion, asserting
that he was in the process of obtaining the sentencing transcripts
1
The certificate of service is dated April 22, 1998, and the
district clerk file stamped his motion on April 27, 1998.
2
and jury instructions from his criminal trial. In the motion,
Patterson stated that “[w]ithout the 30 [day] extension of time
requested . . ., he would be [barred] from filing a § 2255, by the
one year deadline.”
On May 4, 1998, the clerk’s office filed Patterson’s § 2255
motion, in which he argued that he was denied effective assistance
because counsel did not object to a sentence within the guideline
range for crack cocaine instead of the lesser range of powder
cocaine.2 On May 5, the district court denied Patterson’s motion
for extension of time because he failed to set forth the issues he
intended to raise in his § 2255 motion. The court stated:
Movant’s statute of limitations to
file a motion pursuant to 28 U.S.C.
§ 2255 expired on April 30, 1998,
several days after he filed his
motion for extension of time.
Movant has not presented in his
motion for extension of time any
allegations which may be construed
by the court as presenting an actual
motion pursuant to 28 U.S.C. § 2255
such that the statute of limitations
could be tolled. The statute
contains no provision for extension
or authorization for late filings.
There exists no grounds [sic] for
equitable tolling; therefore, this
motion has no merit.
Subsequently, in a separate order, the district court
dismissed as time-barred Patterson’s § 2255 motion filed on May 4,
1998. However, in contrast to the court’s previous order
2
The record indicates that Patterson executed the motion on
April 27 or 29, 1998.
3
indicating that Patterson had until April 30, 1998 to file his §
2255 motion, the court referred to April 24, 1997 as the last
possible day for filing. Patterson filed a motion to reconsider
pursuant to Rule 59(e), which the district court denied.
Patterson filed a notice of appeal and motion for a
certificate of appealability (COA), arguing that the district court
erred when it dismissed his § 2255 motion as time-barred because,
in a prior ruling, it had permitted him to withdraw his first
§ 2255 motion without prejudice, with the understanding that he
would file a § 2255 motion after the “deadline had already passed.”
The district court denied Patterson’s motion for a COA. This Court
granted a COA with respect to whether Patterson’s “§ 2255 motion is
barred by the statute of limitations of § 2255.”
II. EQUITABLE TOLLING
Patterson argues that he “was prejudice[d] because he was
misled by the court into thinking he could refile his pleadings.”
As he is proceeding pro se, we construe his argument to be that the
district court’s actions resulted in an equitable tolling of the
statute of limitations for filing his § 2255 motion. See Felder v.
Johnson, 204 F.3d 168, 170 n.5 (5th Cir. 2000) (concluding that pro
se petitioner had sufficiently raised the issue of equitable
tolling even though he had not specifically made that argument);
Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999) (same).
Patterson’s conviction became final in 1994, which was prior
4
to the April 24, 1996 effective date of the Antiterrorism and
Effective Death Penalty Act (AEDPA). This Court has held that
federal prisoners challenging convictions or sentences that became
final prior to the AEDPA’s effective date are accorded one year
after the effective date of the AEDPA to file for relief under §
2255. United States v. Flores, 135 F.3d 1000, 1006 (5th Cir.
1998); see also Flanagan v. Johnson, 154, F.3d 196, 202 (5th Cir.
1998) (clarifying that because the first day of the one-year
computation is excluded, the last day to file is April 24, 1997).3
Patterson’s original § 2255 motion was filed on December 12,
1996 within the one-year grace period. As set forth previously,
Patterson moved to withdraw his § 2255 motion without prejudice on
April 14, 1997, which happened to be 10 days prior to the
expiration of the April 24, 1997 deadline. He made this request in
order to obtain the assistance of an experienced “writ-writer.”
Nearly a week after the expiration of the grace period, the
district court granted the motion to withdraw and dismissed the §
2255 motion without prejudice, stating that “it would be in the
3
In pertinent part, § 2255 provides that a:
1-year period of limitation shall apply to a
motion under this section. The limitation
period shall run from the latest of --
(1) the date on which the judgment
of conviction becomes final;
. . . .
5
interests of justice.”
Almost a year later, believing that the deadline for filing
his § 2255 motion was one year from the dismissal of his original
§ 2255 motion, i.e., April 30, 1998, Patterson moved for an
extension of time on April 27, 1998, stating that without the
extension of time requested, he “would be [barred] from filing a
§ 2255, by the one year deadline.” The district court denied the
request for an extension of time because Patterson had failed to
set forth “any allegations which may be construed by the court as
presenting an actual motion pursuant to 28 U.S.C. § 2255 such that
the statute of limitations could be tolled.” More important for
purposes of this appeal, the district court expressly stated that
the statute of limitations expired on April 30, 1998.4 Meanwhile,
Patterson delivered a § 2255 motion to prison officials prior to
April 30, 1998. Although the district clerk stamped it filed on
May 4, 1998, such a pro se motion is deemed filed at the time it is
delivered to prison officials. Spotville v. Cain, 149 F.3d 374,
376 (5th Cir. 1998).
4
We have not ascertained how the district court and
Patterson concluded that April 30, 1998 was the deadline. As
quoted in footnote 3 of this opinion, the relevant portion of §
2255 provides that a movant has one year to file a § 2255 motion
from the date on which his judgment of conviction becomes final.
However, it is unclear why they believed that it ran from the date
of the voluntary dismissal of the original § 2255 motion. Of
course, the AEDPA had recently been enacted, and we had yet to
determine the parameters of any grace period for movants in
Patterson’s circumstances (his conviction became final prior to the
effective date of the AEDPA).
6
Subsequently, the district court denied Patterson’s § 2255
motion, dismissing it as time-barred because it was not filed by
the last day of the one-year grace period, April 24, 1997. The
district court apparently did not recognize that it was referring
to a different deadline in this order.
Our precedent indicates that because Patterson’s § 2255 motion
was filed after the one-year grace period it is time-barred. See
Flores, 135 F.3d at 1006. However, we have recognized that the
one-year period of limitations in § 2244(d)(1) of the AEDPA for
filing the analogous § 2254 petition is not a jurisdictional bar
and can be equitably tolled. Davis v. Johnson, 158 F.3d 806, 811
(5th Cir. 1998). Although Davis involved the limitations period in
§ 2244(d)(1), applicable to § 2254 petitions, not § 2255 motions,
we have recognized that the limitations provisions for §§ 2254 and
2255 are “nearly identical.” Flores, 135 F.3d at 1002 n.7. We
further explained that because of the similarity of the actions
brought pursuant to §§ 2254 and 2255, the federal courts have read
them in pari materia as long as the context did not render it
improper. Id. Additionally, other circuits have held that the
statute of limitations in § 2255 is subject to equitable tolling.
See e.g., Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir.
1999). As Flores instructs, we follow Davis’s interpretation of
the limitations provision for § 2254 and likewise conclude that the
statute of limitations in § 2255 may be equitably tolled in “rare
7
and exceptional circumstances.” Davis, 158 F.3d at 811.
“The doctrine of equitable tolling preserves a plaintiff’s
claims when strict application of the statute of limitations would
be inequitable.” Davis, 158 F.3d at 810 (citation and internal
quotation marks omitted). "’Equitable tolling applies principally
where the plaintiff is actively misled by the defendant about the
cause of action or is prevented in some extraordinary way from
asserting his rights.'" Coleman, 184 F.3d at 402 (quoting Rashidi
v. American President Lines, 96 F.3d 124, 128 (5th Cir. 1996)).
We review a district court’s decision with respect to
equitable tolling for abuse of discretion. Fisher v. Johnson, 174
F.3d 710, 713 (5th Cir. 1999). Nonetheless, “[w]e must be cautious
not to apply the statute of limitations too harshly.” Id. We are
mindful that dismissing a first § 2255 motion or habeas petition is
a “particularly serious matter.” Id. (citation and internal
quotation marks omitted). To apply the doctrine of equitable
tolling, we look to the facts and circumstances of each case. Id.
In Davis, we assumed without deciding that the district
court’s failure to notify counsel of his appointment for a certain
period of time justified equitably tolling the limitations. 158
F.3d at 808 n.2. The following cases are examples of circumstances
where we have declined to find that equitable tolling applied:
Fisher, 174 F.3d 710 (petitioner did not receive notice of AEDPA’s
statute of limitations until 43 days after effective date and spent
8
17 days confined in unit for psychiatric evaluation); Coleman, 184
F.3d 398 (seven-week gap between date he submitted state habeas
petition to prison officials and date petition was stamped as
filed); Felder, 204 F.3d 168 (incarceration prior to AEDPA, pro se
status, innocent of crime, and inadequate prison library).
Although not in the context of the AEDPA limitations
provisions,5 the Supreme Court, by way of example, has indicated
that if a “court has led the plaintiff to believe that she had done
everything required of her,” the doctrine of equitable tolling may
be applied. Baldwin County Welcome Center v. Brown, 466 U.S. 147,
104 S.Ct. 1723, 1726 (1984) (citing Carlile v. South Routt School
District RE 3-J, 652 F.2d 981 (10th Cir. 1981)).6
Here, Patterson, a pro se movant, expressly requested that his
motion be dismissed without prejudice to allow him to obtain the
assistance of an experienced writ-writer in filing a subsequent §
2255 motion. In response, the government objected, contending that
dismissal without prejudice after the government had filed a
response would effectively insulate Patterson from the AEDPA’s
prohibition against successive motions. This contention could be
5
“We look to our non-AEDPA cases for further elucidation of
when to toll.” Fisher, 174 F.3d at 713 n.11.
6
Cf. Ynclan v. Department of Air Force, 943 F.2d 1388 (5th
Cir. 1991) (concluding that delay by court clerk in stamping
complaint “filed” because of pending motion to proceed in forma
pauperis justified equitable tolling of limitations in Title VII
suit).
9
read to indicate the government believed that Patterson would be
allowed to file a later § 2255 motion.7 The district court then
granted Patterson’s request and dismissed the motion without
prejudice in the interests of justice. When Patterson attempted to
obtain an “extension” of the April 30, 1998 deadline, the district
court’s order denying that request expressly referenced April 30,
1998 as the deadline.
At the time Patterson moved to dismiss his petition, he and
the district court apparently were under the mistaken impression
that he would not be time-barred from filing another § 2255 motion.
Of course, when the district court dismissed the original § 2255
motion, it did not have the benefit of our decision with respect to
the one-year grace period in Flores.8 Nevertheless, Patterson
relied to his detriment on the district court’s granting of his
request to dismiss the initial, timely filed § 2255 motion in order
to refile it at a later date. The declared reason for Patterson’s
request to withdraw the initial § 2255 motion was to file another
7
Unlike the district court’s subsequent order in 1998, the
government’s objections did not indicate that Patterson would have
a year from the date of the dismissal to refile his motion. We do
not insinuate that the government attempted to mislead Patterson.
Indeed, the government was objecting to the dismissal. We simply
point out that Patterson could have understood the government’s
objections to be consistent, at least, with his understanding of
the deadline.
8
With 20/20 hindsight, one can see that the district court
could have denied Patterson’s motion to withdraw and simply allowed
him time to amend his § 2255 motion. Such a resolution would have
effectively granted Patterson’s request to seek assistance with his
§ 2255 motion within the statute of limitations.
10
(with the assistance of a writ-writer) at a later date. However,
on the very date that the district court dismissed Patterson’s
initial § 2255 motion (over the government’s objections), April 30,
1997, any future filings would have been time-barred by our
subsequent interpretation of the applicable limitations provision
in Flores.
We are persuaded that these circumstances are sufficiently
rare and extraordinary to warrant equitable tolling of the grace
period until April 30, 1998. Thus, we vacate the district court’s
dismissal of the § 2255 motion that ultimately was filed by that
date.9
9
Relying on In re Gasery, 116 F.3d 1051, 1052 (5th Cir.
1997), Patterson also argues that the filing of his 1998 § 2255
motion was not a new motion but instead was a “continuation” of the
first motion. Specifically, Patterson contends that he “only
refil[ed] his original petition adding new issues . . . .”
Although not on point, we believe our analysis in Graham v.
Johnson, requires us to reject this contention. 168 F.3d 762 (5th
Cir. 1999). Graham, relying on Gasery, argued that because the
AEDPA did not apply to habeas petitions pending on the date of its
enactment, it did not apply to his November 1998 petition because
it was simply a “continuation” of his 1993 petition, which was
pending on appeal the date the AEDPA became law. We opined that
Graham made too much of our language in Gasery. Id. at 775. We
explained that Gasery simply “holds that an application refiled
after an earlier application was dismissed without prejudice for
failure to exhaust state remedies is not second or successive to
that earlier application” under the AEDPA. Id. We further
explained that the refiled application was governed by the AEDPA.
Finally, we opined that “[c]onstruing an application filed after a
previous application is dismissed without prejudice as a
continuation of the first application for all purposes would
eviscerate the AEDPA limitations period and thwart one of AEDPA’s
principal purposes.” Id. at 780. Accordingly, we have rejected
the contention that Gasery’s language indicates that the refiling
of a petition previously dismissed without prejudice constitutes
11
For the above reasons, we conclude that the grace period was
equitably tolled until April 30, 1998. We therefore VACATE the
dismissal of Patterson’s 28 U.S.C. § 2255 motion and REMAND for
further proceedings.
VACATED AND REMANDED.
the same habeas proceeding. This contention offers Patterson no
succor.
12